Mendoza v. United States

• Decision Date: 09 August 1966
• Docket Number: No. 21516.,21516.
• Citation: Mendoza v. United States, 365 F.2d 268 (5th Cir. 1966)
• Parties: Jose Martinez MENDOZA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

365 F.2d 268 (1966)

Jose Martinez MENDOZA, Appellant, v.UNITED STATES of America, Appellee.

No. 21516.

United States Court of Appeals Fifth Circuit.

August 9, 1966.

Freeman M. Bullock(Court-appointed)R. Richard Thornton, Houston, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, WISDOM, and GEWIN, Circuit Judges.

WISDOM, Circuit Judge:

The petitioner, Jose Martinez Mendoza, was convicted by a jury September 29, 1960, for violation of the Federal Narcotic Drugs Import and Export Act, 21 U.S.C. § 174.¹He was given a twelve-year sentence.He did not appeal.In this proceeding under 28 U.S.C. § 2255, Mendoza's petition alleged only that the indictment was insufficient to support the conviction.The district court denied the motion, without a hearing, in a careful memorandum order.On appeal of the order, Mendoza asserted three new issues: (1) insufficiency of evidence to support his conviction; (2) denial of his right to counsel before arraignment; and (3) the admission of evidence obtained in the course of an illegal arrest.We postponed our decision pending the Supreme Court's disposition of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and related cases involving the right to pre-arraignment counsel.We now affirm.

I.

About six in the morning, July 1, 1960, the petitioner, Jose Mendoza, his common law wife Carmen Stahl, and three others were traveling by automobile through Freer, Texas, on their way to San Antonio.Mendoza was driving.Reese Hughes, a Freer constable, saw the car make an illegal turn.He followed the car two blocks north, two blocks west, and overtook it, intending to give the driver a ticket for a traffic violation.After learning that Mendoza had no driver's license, Hughes ordered Mendoza to drive to the Freer City Hall to answer charges of driving without a license and other violations.When Hughes asked Mendoza to identify himself, Mendoza produced identification papers of Richard Sanchez Espinosa of San Antonio.

At City Hall, Hughes and other officers examined the physical appearance of the arms of all five occupants of the car.The officers had not then warned the group of their right to remain silent.Mendoza voluntarily pulled off his coat and rolled up his shirt sleeves for this examination.²The officers found narcotic needle marks on his arms and on the arms of three of his companions.The four admitted that they were heroin users.Hughes promptly telephoned Frederick A. Rody, a United States customs agent in Laredo, Texas, sixty miles away, and said that he had reason to think that Mendoza and his companions had violated federal narcotics laws.

Rody and another customs agent, Charles F. King, drove from Laredo to Freer City Hall, arriving later in the morning.King questioned each passenger of the automobile.He warned Mendoza that he was not under arrest, that he did not have to answer any questions, and that any answers he gave could be used against him.Mendoza and his companions explained that they were returning to their homes in San Antonio after an unsuccessful attempt in Laredo to locate Miss Stahl's aunt.They denied possession of narcotics.

While the others remained at City Hall, Constable Hughes took Mendoza, still masquerading as Espinosa, before the local magistrate.Mendoza pleaded guilty to traffic charges.These are not set out in the record.He was then taken back to City Hall, where the customs agents were continuing their examination of the other passengers.Agent King, in examining Mendoza, verified that his arms had the identifying marks of a heroin user.Mendoza admitted using heroin about three times a week.About this time, King learned from the San Antonio customs agents that the San Antonio police had an outstanding armed robbery warrant for the arrest of Carmen Stahl and Jose Martinez Mendoza.He suspected that "Richard Espinosa" was Mendoza.Questioned, Mendoza quickly conceded his identity.

The customs agents took the four narcotics suspects to a physician's office in Laredo for physical examinations.There the doctor found a rubber finger stall containing 52 grams of heroin hydrochloride in Miss Stahl's vagina.She admitted that she bought the heroin in Laredo and had thrown away several other packages containing heroin while Hughes was pursuing the party in Freer.The doctor's examination of Mendoza's needle marks indicated that he was a long-time user of narcotics.The doctor did not tell Mendoza that the inspection was voluntary or that he did not have to make any statements.He concluded, however, that the customs agents had not used force to extract any statements from the petitioner.

The agents placed Mendoza under federal arrest.At about 4 p. m.he was arraigned before the United States Commissioner in Laredo.According to the government's brief, all four defendants were advised at the arraignment of their right to counsel and right to remain silent, and Mendoza was given ample opportunity to obtain an attorney.He waived his hearing before the Commissioner.None of the defendants asked to consult an attorney prior to their appearance before the Commissioner, and Mendoza made no demand to consult an attorney until bail was set.Mendoza had a separate trial, although he was charged on a common indictment with his three companions.

II.

In his 2255 petition Mendoza alleged that his indictment was insufficient to support the conviction, relying on Lauer v. United States, 7 Cir.1963, 320 F.2d 187.Lauer held that an indictment charging unlawful sales of narcotics under 26 U.S.C. § 4705 was defective on its face in failing to name the purchaser of the narcotics.This Court,³ as well as most of the other circuits,⁴ has declined to follow Lauer, and the Seventh Circuit, sitting en banc, has recently overruled the decision.⁵

The gist of Mendoza's offense under 21 U.S.C. § 174, as the indictment charged, was to knowingly "receive, conceal, buy, sell, or * * * facilitate the transportation, concealment, or sale of" a narcotic drug after the same is unlawfully imported into the United States.In the case at bar the word "sell" appeared as one of several possible ways in which the statute had been violated, charged in the conjunctive along with "receive, conceal, buy, * * * and facilitate the transportation and concealment of" a drug.It has never been held that the name of a person to whom the narcotics were allegedly sold is an essential element of an indictment under § 174, the omission of which would render the indictment vulnerable to collateral attack.United States v. Jackson, 3 Cir.1965, 344 F.2d 158.

The petitioner contends that the indictment is vague but does not state in what respects it is vague.The general rule is that an indictment tracking the statute sets out the elements of the offense and will be held sufficient.This principle has been applied to indictments similar to Mendoza's indictment.United States v. Rodgers, 5 Cir.1955, 218 F.2d 536;Rodriguez v. United States, 5 Cir.1955, 218 F.2d 810;Brown v. United States, 9 Cir.1955, 222 F.2d 293;United States v. Bailey, 7 Cir.1960, 277 F.2d 560;United States v. Glass, 7 Cir.1960, 277 F.2d 566;andPalomino v. United States, 9 Cir.1963, 318 F.2d 613.

The entire record of a case may be examined to resolve any question of double jeopardy.Firo v. United States, 5 Cir.1965, 340 F.2d 597;Collins v. Markley, 7 Cir.1965, 346 F.2d 230.In this case, the evidence and instructions amply support the several elements of the indictment, including the defendant's knowledge that the heroin was illegally imported.

III.

The petitioner recognizes that he may not question the sufficiency of evidence for his conviction in a section 2255 proceeding.Armstead v. United States, 5 Cir.1963, 318 F.2d 725.Mendoza questions whether there was any evidence whatever of his knowledge or possession of an unlawfully imported drug.It is "a violation of due process to convict and punish a man without evidence of his guilt."Thompson v. City of Louisville, 1960, 362 U.S. 199, 206, 80 S.Ct. 624, 628, 4 L.Ed.2d 654.This argument is inapplicable here.

Mendoza contends that there is no presumption of guilt arising from possession of unlawfully imported narcotics, because his wife, not he, was in possession of the narcotics.But here, without benefit of the presumption of defendant's possession, there was sufficient evidence for the jury to find that he knowingly facilitated the transportation and concealment of illegally imported heroin by his common law wife.We need mention only that: (1) Mendoza and his common law wife traveled some 150 miles from San Antonio to Laredo, a border city and a center of traffic in narcotics smuggled from Mexico; (2)he admitted that he knew that his wife had obtained a quantity of heroin and expected to share it with her; (3) knowing this, and that she had the narcotics concealed on her person, he drove his automobile with her as a passenger from Laredo by an unusual and circuitous route toward San Antonio; (4) upon becoming aware of the surveillance of a police officer, he attempted to outrun the police car and escape; (5) upon his arrest, he attempted to conceal his identity and the reason for his trip to Laredo; (6)he was an admitted user of narcotics over a period of eight years; (7) both Mendoza and Carmen Stahl proved upon physical examination by a physician with exceptional experience in dealing with narcotic addicts to be marked by hypodermic needles and, in the physician's expert opinion, to show the symptoms of the narcotic user; (8) Mendoza's admissions supply explicitly all of the elements of knowledge required under the statute with the exception of the importation of the drug, and this the evidence supplies circumstantially.Cf.Arellanes v. United States, 9 Cir., 1962, 302 F.2d 603, 606;Figueroa v. United States, 9 Cir.1965, 352 F.2d 587.The...